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Is There (Still) Room for Non-Economic Arguments in Article 101 TFEU Cases?

Many agree that public policy goals were considered in Article 81 EC (now Article 101 TFEU) from time to time. Section 2 explains why the EC Courts (now the EU Courts), the Commission and the other EC Institutions considered public policy within Article 81.

Article 81’s goals were rarely discussed openly, but some recent Commission policy statements assert that, at least since 2004, the provision has had just one goal: “The objective of Article 81 is to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources.”

There is no room in this ‘new approach’ for public policy goals. Many EU competition lawyers support this ‘new approach’ by the Commission.

This attempt to remove public policy goals has advantages and disadvantages. Rather than examining these, this paper discusses two recent changes. First, the Lisbon Treaty 2007 modified some competition-related provisions. Secondly, from 1999 onwards, there was a period of ‘modernisation’ in EU competition law. Section 3 asks whether the Lisbon Treaty changed public policy’s relevance in (now) Article 101; and, if the Commission’s (and Council’s) modernisation agenda could change the substantive content of that article. Section 4 examines the EU Courts’ recent Article 101 case law; public policy goals have often been considered there, undermining the Commission’s ‘new approach’. There is still room for non-economic goals in Article 101 cases.

There is renewed interest in Article 101’s goals today. It is an important issue, which can affect the compatibility of agreements with the internal market. This can have impacts for undertakings in terms of reputational issues, fines and damages actions; in some countries criminal offences may even have been committed. There are also implications for the Commission and the Member States’ courts and competition authorities when they are applying Article 101, what issues should they be considering. This, in turn, affects the kinds of expertise that they need to bring to bear on cases.